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Prof Ben Cousins' article in Business Day: Individual title can obstruct access by the poor to urban and rural land

by Business Day in 2018

Prof Ben Cousins, 31 Aug

Policies to secure land rights should begin by improving existing systems rather than replacing them

Individual ownership is not a silver bullet for the insecurity of land tenure experienced by millions of South Africans. Nor is it a solution to structural poverty. A range of other land tenure systems should be on offer, especially in those living areas where customary law is embraced, as well as in informal settlements and backyard shacks. Yet many commentators in the debate on the land question argue that “title deeds” (records of private property) are a key solution. Particularly vociferous are advocates of business-led development and free markets, such as the Institute of Race Relations. But arguments that seem to propose that land titling is the only thing that matters are singularly unhelpful.

Individual ownership has many strengths, and is indeed appropriate for private capital and the middle classes. Extending the system to the emerging middle class, including black commercial farmers, is no doubt important. But if a large-scale, systematic titling programme is attempted to the exclusion of all else, this could lead to increased insecurity for the majority of citizens – and add fuel to the flames of populism.

This is a key lesson from the Kenyan experience of individual titling, which was begun in the 1950s but is still incomplete today. Once customary land became a tradable asset, some of the poor lost their land through distress sales, often to urban-based business people intent on accumulating land for speculative purposes.

The perceived positive consequences of titling, such as increased investment in agriculture, often failed to materialise.

In addition, many families in rural Kenya disputed the legitimacy of market transactions, insisting on the primacy of family or clan-based claims. Magistrates often ruled in their favour, given the importance of land to local livelihoods and the volatility of land disputes within local politics. The result is that for many decades now there has been a growing gap between official records of ownership and realities on the ground.

The global literature suggests strongly that policies to secure land rights should begin by incrementally improving security within existing systems, rather than attempting to replace them. Agencies such as the UN Food and Agriculture Organisation now argue that pro-poor land policies should support systems in which property rights are shared by members of families, as well as by larger groups.

These “social tenures” tend to combine strong family rights to plots with group rights to shared resources on the commons, such as grazing. Few involve communal ownership of all resources, and most land is administered at the level of the village or neighbourhood. Family rights are generally secure, inheritable, and underwrite social cohesion.

Social tenures are also accessible and affordable to the poor, require less state bureaucracy, and can offer high levels of tenure security. From a purely pragmatic point of view, providing them with legal recognition makes a great deal of sense.

Reforms along these lines have been instituted in Mozambique, Tanzania, Madagascar, Uganda and Liberia. Here, the main obstacles to securing the land rights of the poor are not legal but political, with ruling elites more interested in large-scale foreign investment in land than implementing pro-poor policies.

In SA, private ownership of land was denied to most black people in the colonial era and under apartheid. Demands by the black middle class for title deeds are appropriate and legitimate. But the middle class constitutes only about 25% of our society at present. What of the majority, whose livelihoods are so much more vulnerable?

The costliness of individual titling, for both the beneficiaries and the state, is an important consideration. Another is the time required to issue titles to all those with land rights, as well as to resolve disputes that will be generated. But tenure reform is urgent, particularly for those living under traditional leaders and in informal settlements and backyards.

A title deed records an owner’s right to a surveyed unit of land with precise boundaries, from which non-owners can be excluded. This is the cadastre, the basic building block of complex systems of registration, development planning and service delivery. Surveyors, lawyers and planners maintain these systems and require payment. Transfer and registration require conveyancers, and services from a municipality must be paid for. It costs money to own private property. No wonder so many RDP houses have been sold, with owners moving back to shacks.

The relatively high costs and the individualised nature of private property make it an impractical system for many of the poor. People without secure access to income tend to depend on assistance from those to whom they are connected in social relationships. Mutual aid is crucial, beginning with the family and extended networks of kin, but also neighbours.

Social cohesion is underpinned by access to property based on recognised membership of these social units.

Social tenures underpin the survival strategies of many of those in poverty. Deeply rooted in rural society, they inform modes of land access in urban areas as well. Recognised need is much more important as a criterion of access in these systems than ability to pay. In rural areas, commonage is a critically important component, providing low-cost access to water, grazing, forests and other key resources.

This seems to suggest that social tenures are all the same. In fact, in their details they are diverse, flexible, dynamic and responsive to changing conditions and needs. Some are more individualised than others. Recognition in law and policy must not involve imposing a straitjacket of uniformity, which will undermine diversity and dynamism. It must not reduce the scope of land rights to individual plots. It must support access to the commons in rural areas.

What of the “collateral effect”, and the notion that the poor can use title deeds to borrow money from a bank, start up a small business, and work themselves out of poverty?

In Kenya, banks do not offer loans with small plots as security because the transaction costs of a loan exceed the value of the plot. In SA, township dwellers with titles are unwilling to put their homes at risk by borrowing in support of a small business that might well not succeed.

Despite the absence of titles, small farmers and businesses do invest in their enterprises. Private titles are neither necessary nor sufficient for entrepreneurial behaviour and success.

Of course, not all is well in the world of informal land rights at present. Because they are off-register and informal in character, without legal recognition and institutional support, abuse can occur. This can involve sales of ancestral land by traditional leaders, exploitation by unscrupulous shacklords or external investors, and dispossession by the Ingonyama Trust.

Tenure reform must aim to provide legal protection for rights holders, and enable them to hold administrators, such as traditional leaders or local committees, to account.

Urgently required now are the comprehensive tenure reforms proposed by the high-level panel of parliament. These are pragmatic solutions focused on formal recognition and recording of the land rights of the majority.

Individual land titling is fine for the middle classes and for black commercial farmers, but it will not work for the urban and rural poor. Those who are worried about secure property rights should not seek to impose private titles on those who neither want nor need them.